Tessier's, Inc. v. Secretary of Labor ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2359
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Tessier’s, Inc.
lllllllllllllllllllllPetitioner
v.
Secretary of Labor
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Occupational Safety & Health Review Commission
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Submitted: May 13, 2021
Filed: July 22, 2021
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Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges.
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WOLLMAN, Circuit Judge.
Tessier’s, Inc. employee Cameron Puepke was modifying a hole cover on the
roof of an unfinished building when the cover collapsed, causing Puepke to fall
twenty-two feet to the floor below. The Occupational Safety and Health
Administration (OSHA) issued a citation against Tessier’s under 29 C.F.R.
§ 1926.501(b)(4)(i), for failing to protect its employees from falling through holes.
An Occupational Safety and Health Review Commission administrative law judge
(ALJ) affirmed the citation, which the Commission declined to review. Tessier’s
filed a petition for review of the resulting final order, arguing, among other things,
that the ALJ erred in finding that Tessier’s employees removed a one-foot-by-three-
foot section of the cover before it collapsed. We deny the petition.
Layton Construction and Gustafson Construction Corporation (Layton-
Gustafson) together served as the general contractor for the construction of an
orthopedic and sports medicine facility in Rapid City, South Dakota. A Layton-
Gustafson subcontractor hired Tessier’s to install the dry-side mechanical systems,
i.e., air handling units, roof curbs, and ductwork for the HVAC systems.
Three air handling units were to be installed in Area C of the roof, in which
five holes had been created to accommodate the units. The holes were framed by L-
shaped bent steel plates, which were attached to the building’s I-beams. Layton-
Gustafson carpenter Paul Garcia measured the holes, assembled two-by-four wood
frames in the shape of a box, and then screwed pieces of plyform (a type of sturdy
plywood) or plywood on top of each box to complete the covers, which were
thereafter placed over the holes. The two-by-four frames rested outside the bent steel
plates and were affixed to the structure with deck screws.
Garcia was instructed to rebuild the covers so that they would not interfere with
the pouring of the roof’s concrete floor. He disassembled the covers, rebuilt the
frames so that they would fit tightly inside the steel plates, and reattached the
plywood. The plywood of the rebuilt covers served as the load-bearing surfaces, with
one-half inch to one inch of plywood extending over the plates framing the holes.
The frames themselves were not affixed to the structure. The word “hole” was
emblazoned on each cover in florescent spray paint.
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Tessier’s began installing roof curbs—pieces of galvanized tin—in Area C on
March 8, 2018. The curbs were designed to fit around the holes where the air
handling units would be installed. While placing the curbs, the Tessier’s crew
discovered that the covers’ excess plywood overhang prevented the curbs from sitting
flush against the bent steel plates.
To remedy the plywood-overhang problem, Puepke and fellow Tessier’s
employee Jason Fenner decided to trim the covers’ edges while the covers were still
in place. They believed that the covers’ frames were affixed to the building’s
structural steel, but did little to investigate and thus did not discover that the plywood
alone constituted the load-bearing surface of each cover. After relaying the cover-
modification plan to the foreman, Fenner used a reciprocating saw to cut a small strip
from a short end of the first cover, which stayed in place.
The hole for Air Handling Unit Number 4 was three feet wide and eight feet
long. Puepke and Fenner removed a one-inch strip from a short end of the cover to
install the curb. The Secretary maintains that they also removed a one-foot-by-three-
foot section of the cover, which Tessier’s disputes. Fenner and Puepke thereafter
used a screw gun to begin removing screws from a one-and-one-half inch wide strip
of plywood on a long side of the cover.
Puepke rested his hand on the middle of the cover. When he leaned onto it, the
cover collapsed like “a hinge” or “a tripod with only two legs,” causing Puepke to fall
to the floor below. He suffered serious injuries, including skull fractures, broken
bones, and a fractured pelvis. Fenner was pulled to safety by coworkers and was not
injured.
The workers who witnessed the fall completed incident reports and made a
diagram of the incident. Their reports did not indicate whether the one-foot-by-three-
foot section of plywood had been removed. A Layton-Gustafson supervisor reported
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that “[p]art of the cover was removed and while attempting to remove more plywood,
the hole protection gave out.” A Layton-Gustafson project manager made a
computer-generated version of the diagram, which suggested that a one-foot-by-three-
foot section had been removed.
OSHA Compliance Safety and Health Officer Anthony Castillo inspected the
worksite during his investigation of Puepke’s fall. Most of the collapsed cover was
located on the second floor, where it had landed after falling through the hole. A one-
foot-by-three-foot section of the cover remained on the roof, however. It was found
on the roof itself, outside the curb and next to the one-inch strip of trim that Puepke
and Fenner had removed. The frame beneath that section revealed a “volcano effect”
on some screw holes, indicating that the screws may have been forcibly ripped out of
the frame and not removed by a screw gun.
As earlier stated, Tessier’s was cited for failing to protect its employees from
falling through holes. Following a three-day trial, the ALJ found that Tessier’s had
committed the violation. The ALJ’s decision became the Commission’s final order
in light of its declination of review. See 29 U.S.C. § 661(j).
On petition for review, we uphold the Commission’s factual findings that are
“supported by substantial evidence on the record considered as a whole.” Omaha
Paper Stock Co. v. Sec’y of Lab., 304 F.3d 779, 782 (8th Cir. 2002) (quoting 29
U.S.C. § 660(a)). “Substantial evidence is relevant evidence that a reasonable person
might accept as adequate to support a conclusion.” Id. We uphold “the
Commission’s legal conclusions unless they are ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” Id. (quoting 5 U.S.C.
§ 706(2)(A)).
Tessier’s contends that the citation was not validly issued. To establish that the
citation was validly issued, the Secretary was required to prove by a preponderance
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of the evidence that, among other things, the cited standard applied to the condition.
Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981); see 29
U.S.C. § 654(a)(2) (requiring employers to “comply with occupational safety and
health standards promulgated under this chapter”). The standard here provides:
Each employee on walking/working surfaces shall be protected from
falling through holes (including skylights) more than 6 feet (1.8 m)
above lower levels, by personal fall arrest systems, covers, or guardrail
systems erected around such holes.
29 C.F.R. § 1926.501(b)(4)(i). “Hole” is defined as “a gap or void 2 inches (5.1 cm)
or more in its least dimension, in a floor, roof, or other walking/working surface.”
Id. § 1926.500(b).
Tessier’s argues that the standard does not apply. It maintains that there was
no gap or void of two inches or more because the hole was covered and thus there
was no hole. Tessier’s further contends that substantial evidence does not support the
ALJ’s finding that Fenner and Puepke removed a one-foot-by-three-foot section of
the cover and thereby exposed a hole. Tessier’s concedes that the standard applies
if substantial evidence supports the disputed finding.
We conclude that the Secretary presented sufficient evidence to allow a
reasonable person to find that Puepke and Fenner removed the section of the cover.
See Omaha Paper Stock Co., 304 F.3d at 782. Puepke testified at his deposition that
he and Fenner removed a one-foot-by-three-foot section. When OSHA’s Castillo
inspected the worksite, a section of that size was found on the roof, next to the one-
inch strip that had been removed from the three-foot end of the cover. The Layton-
Gustafson employee responsible for preserving the site denied Tessier’s allegation
that the section had collapsed during the fall and that anyone could have returned it
to the roof from the second floor. Fenner testified that he could not remember
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whether the one-foot-by-three-foot section had been removed, noting that he “may
have” removed it.
The evidence that Tessier’s cites does not compel a conclusion contrary to the
ALJ’s. Puepke contradicted his own deposition testimony at trial, testifying instead
that the section had not been removed. Fenner testified that they had not reached the
long edge of the one-foot-by-three-foot section before the collapse, but he
equivocated when asked whether they had removed the one-foot-by-three-foot
section. The volcano effect in the frame beneath the section does not necessarily
establish that the section had not been removed before the collapse, particularly in
light of the evidence that Fenner had told OSHA that he and Puepke had used a screw
driver to pry off a portion of the cover.
We conclude that substantial evidence supports the ALJ’s conclusion that
Puepke and Fenner had removed a one-foot-by-three-foot section of the cover before
it collapsed and, in doing so, exposed a hole. See 29 C.F.R. § 1926.500(b) (defining
“hole”).1 Because this hole was not covered and was more than six feet above the
second floor, Tessier’s was required to protect its employees from falling by means
of an alternative form of fall protection, which it had not done. See id.§ 1926.501(b)(4)(i) (requiring “personal fall arrest systems, covers, or guardrail
systems”). The ALJ did not err in concluding that Tessier’s had committed the
violation.
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Having concluded that substantial evidence supports the conclusion that
Tessier’s employees themselves exposed a hole, we reject Tessier’s argument that the
Secretary failed to establish that Tessier’s knew or could have known of the violative
condition, i.e., the lack of employee fall protection when work surface had a hole
more than six feet above the lower level. See Astra Pharm. Prods., Inc., 9 BNA
OSHC at 2129 (requiring the Secretary to prove by a preponderance of the evidence
that the employer “knew or could have known of the [violative] condition with the
exercise of reasonable diligence”).
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The petition for review is denied.
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